How to Evict a Tenant for Non-Payment of Rent

22 Feb How to Evict a Tenant for Non-Payment of Rent

In New Jersey, evicting a tenant for failing to pay rent is not as simple as waiting until the sixth day of the month, then changing the locks.  Because the law strongly protects the tenant’s right to possess the rental property, there are a number of steps that a landlord must go through to ensure an efficient and successful eviction, steps that begin when the landlord drafts the lease and end well after the parties’ day in court.

The good news is that the courts classify the eviction process as a “summary action,” meaning that it is about as quick a legal process as can be.  There is no discovery allowed, and the tenants do not have the opportunity to submit an answer and/or counterclaim.  The primary issue at hand is simply whether or not the tenant owes money to the landlord.

In order to maximize his or her ability to evict the tenant, the landlord must make sure that the lease agreement has the correct language.  Specifically, in order to evict a tenant for any arrears other than base rent, the lease agreement must specifically declare that the obligation is payable “as additional rent.”  For example, if the lease states that the tenant is responsible for the monthly electric bill, the tenant cannot be evicted for failing to pay the bill unless the lease states something to the effect of  “the electric bill is payable as additional rent.”  This language is especially important as regards attorneys fees.  If the lease states that attorneys fees are payable as additional rent, then the tenant must reimburse the fees the landlord paid to commence the eviction before the complaint can be dismissed.

Once the landlord determines exactly how much is due and owing, the next step is to prepare a complaint that specifically breaks down what is due, from what month.  It is not enough to simply state that the tenant owes the landlord some undefined lump sum of money.  Rather, the complaint should itemize what is due per month, be it rent, utilities, or any other obligation.  Of course, the should also set forth the attorneys fees due, if applicable.  This is why landlords should keep thorough and accurate books and records of what the tenant owes.  If the records are vague, or if they stretch back more than a few months, into years past, it will be that much easier for the tenant to contest the amount alleged to be due should he appear at court.

Once the complaint is filed, along with a verification signed by the landlord attesting to the amount due in the complaint, the court will then mail out the complaint and summons to the tenant, and a trial date will be scheduled, usually within a month or so of the filing date.  During the pendency of the litigation, the tenant may try to reach out to the landlord to resolve the matter and prevent being evicted.  Landlords should be aware that if the tenant offers to pay the full amount due in the complaint, including attorneys fees and costs (provided, of course, that the lease contains the “as additional rent” language), the landlord must accept the money and dismiss the complaint.  If the tenant offers to make a partial payment, the landlord may accept the payment, but is by no means required to.  With that being said, the landlord must be clear to the tenant regarding her intentions to either dismiss the complaint or keep it on the docket.  Of course, if the parties agree to a payment plan or forgiveness of some portion of the debt, the agreement should be reduced to writing to protect both parties.

On the day of court, quite candidly, most tenants do not appear.  If the tenant knows that he owes the landlord rent, and has no ability to pay, then there really is no benefit to showing up.  If the tenant fails to appear, then default is entered and Judgment for Possession is issued.  If the tenant does appear, then he either will pay the full amount due in the complaint, post the amount with the court to have a hearing, or the parties will enter into some form of consent order, with a Judgment for Possession entering.

The Judgment for Possession is the official ruling of the court that the tenant no longer has the right to reside at the rental property.  Of course, this does not mean that the tenant automatically vacates that very instant, but rather the Judgment must be formally executed.  After three business days, the landlord must request a Warrant of Removal, which will then be posted three business days after that.  Once that is done, the landlord must be in contact with the court to schedule a lockout, then be present on that date and time with someone who can change the locks to the property.

Once the lockout occurs, the landlord should send a letter to the former tenant giving her thirty three days to remove any remaining possessions from the property.  If there is absolutely nothing left in the unit, or if it appears to be only trash, the landlord should at the very least take pictures or make a video documenting the state of the property, to protect against being sued by the tenant for disposing of any property without authorization, even if the suit is meritless.

Lastly, landlords should be clear that, even though it is based on a debt, the eviction process is solely for the right to regain possession of the property from the tenant.  If the landlord wishes to sue the tenant to recover the money that is owed, that is a different litigation separate and apart from the eviction process.